IT, or information technology, has a broad meaning. It encompasses all electronic means of producing, capturing, storing, transmitting and displaying information. Thus, it covers e-mail, electronic document exchange, facsimile and even telephone, as well as certain other technological tools that are sometimes used in arbitration hearings, such as videoconferencing, multimedia presentations and real-time electronic transcripts. Over the last few years, the increased use and importance of electronic means of communication and data exchange has dramatically changed the way business people, lawyers and arbitrators work.

Although the use of IT in international arbitration is not new, it is only now that preferred practices aimed at convenience and cost-effectiveness are beginning to emerge. The hardware and software in general use in one place may still not be interoperable or compatible with that used elsewhere. Furthermore, despite impressive advances, IT still remains prone to error and less easy to use than fixed-line telephones and typewriters, for instance. In the adversarial setting of arbitration, even trivial compatibility or interoperability problems can take on a heightened significance. Moreover, to some users IT may be normal practice and quite safe, whereas to others it may seem extravagant, risky or overly expensive. Much will depend on the experience and attitudes of the parties and arbitrators involved in the proceedings.

The use of IT in resolving disputes is aided by a stable environment in which there is a permanent infrastructure, a rulemaking authority and restrictions on access. Unlike litigation, international arbitration lacks such an environment. The parties and the arbitrators are usually different in each case, so it is difficult for them to rely on pre-established IT solutions. In many instances one party will be ignorant of the other's IT capabilities and may not be in the habit of using IT for exchanging or presenting information customarily submitted on paper or orally without multimedia presentations. Moreover, the procedural rules used in international arbitration may vary from case to case on account of the freedom given to parties and arbitrators, and emerging cross-cultural procedural practices are applied with flexibility. As a subordinate tool, IT therefore needs to be capable of adapting to the various ways in which proceedings are conducted.

It must also be remembered that the users of IT in arbitration are arbitration practitioners, not IT specialists. When addressing the use of IT in arbitration, the right balance therefore needs to be struck between technical details on the one hand, which risk becoming quickly outdated, and broad general statements on the other hand, which may be insufficient for solving the practical issues encountered. It is not an easy balance to strike. Emerging technologies often [Page60:] err on the side of complexity before maturing into a more simplified and manageable form, and there is no reason to think that the use of IT in arbitration, which is still in its early days, should be immune to this trend.

It was against this background that the ICC Commission on Arbitration set up a Task Force to continue work previously begun by a study group within the Commission's Forum Arbitration Issues and New Fields. The Task Force on IT in Arbitration was mandated to study specific issues raised by the use of IT in arbitration. In carrying out its mandate, it decided:

· to provide an overview of IT issues that may arise at specific stages of the arbitral process and those that can be relevant at any stage of the proceedings (examples of the latter are the interoperability of hardware and software and the protection of intellectual property rights);

· to propose completely voluntary and flexible procedures and approaches for using IT in international arbitration, presented as boilerplate texts that parties and arbitrators can freely modify in any way that makes sense in the context of their particular arbitration;

· to encourage reflection and debate on the use of IT in international arbitration by inviting comments on the proposed boilerplate texts and suggestions as to alternative or additional procedures that might better serve parties and arbitrators in the setting of an international arbitration.

The first two aims led to the drafting of the documents that are published in the following pages.

The overview of IT issues that may arise at different stages of the arbitral process sets out to provide users - especially those who have no extensive experience in the field - with a comprehensive overview of issues that should be borne in mind when deciding to use IT in an arbitration and practical suggestions for dealing with such issues. It may be used like a checklist.

The boilerplate procedures and approaches, which, after long discussions and many drafts, were entitled 'The Standards', comprise:

- a method for exchanging information so as to establish that the IT solutions to be used are compatible and that the parties and the tribunal are able to access information in electronic format;

- a method for agreeing on desired IT solutions;

- a method for dealing with errors; and

- standard solutions that participants or the tribunal may adjust according to their needs.

The Standards focus above all on the use of electronic documents and communications, reflecting the Task Force's view that the intelligent use of documents in electronic format can considerably simplify the submission and use of the huge numbers of documents that characterize many international arbitrations.

The ICC Commission on Arbitration has extended the mandate of the Task Force to the monitoring of users' experiences and, if proved necessary, the future revision and amendment of the documents resulting from its work to date. This presupposes user feedback, which we hope will be forthcoming.[Page61:]

Work within the Task Force proved to be a highly stimulating experience, all the more so as much use was made of IT. It is impossible to thank all the members of the Task Force individually for their contributions and commitment, which were essential to the collective work that has been achieved. However, special credit should be given to Andrew Foyle and Robert Hunter for their groundwork on the list of issues to be considered when using IT, and to David Wilson and Patrick Thieffry for finalizing the English and French texts respectively.

1
Chair of the Task Force on IT in Arbitration, set up under the auspices of the ICC Commission on Arbitration. The members of the Task Force are: Babak Barin (Canada), Robert A. Bourque (USA), Michel Brisac (France), Stefan Brocker (Sweden), George Burn (United Kingdom), Oscar Cruz Barney (Mexico), Maralgoo Dashdoorov (Mongolia), Pierre de Ravel d'Esclapon (USA), Daniele Favalli (USA), John Fellas (USA), Andrew Foyle (United Kingdom), Frederick R. Fucci (USA), Marvin G. Goldman (USA), Ruben Dario Gomez Arnaiz (Mexico), Francisco Gonzalez de Cossio (Mexico), Christopher C. Gorski (USA), Thomas D. Halket (USA), Axel Heck (France), Richard A. Horning (USA), Robert Hunter (Germany), Martin Hunter (United Kingdom), William E. Huth (USA), Mark Joelson (USA), Suman Jyoti Khaitan (India), Humphrey Lloyd (United Kingdom), Torsten Lörcher (Germany), Federico Lucio Decanini (Mexico), Dana C. MacGrath (USA), Michael Madden (United Kingdom), Wynnefred Mancini (France), Som Mandal (India), Carlos McCadden Martinez (Mexico), Charles L. Measter (USA), Loukas Mistelis (United Kingdom), Frank J. Newbould (Canada), Lawrence W. Newman (USA), Christopher Newmark (United Kingdom), Margareth Oliveira de Morais (Brazil), Marcos Peña Rodriguez (Dominican Republic), Carlos Portilla Robertson (Mexico), Alain Prujiner (Canada), Vivian A. Ramsey (United Kingdom), Arthur W. Rovine (USA), Jorge A. Sanchez Cordero Davila (Mexico), Adam P. Schiffer (USA), José Luis Siqueiros Prieto (Mexico), Irina Sokolova (Russia), José Pio Tamassia Santos (Brazil), Patrick Thieffry (France), Marina Titievskaya (Russia), Charles O. Verrill (USA), Thomas H. Webster (France), David B. Wilson (USA), Peter Wolrich (France), Norbert Wühler (Switzerland), William Zauner (USA), Julia Zhytnik (Russia).